Updated October 11, 2013:
Prosecution Is Not the Way to Save a 10-Year-Old Child, October 10, 2013
Juveniles are NOT adults and should never be treated as such. But prosecuting a 10 year old is beyond ridiculous!
Federal Youth Case on Trial, October 8, 2013Prosecution of 10-Year-Old on Sex Charges Stokes Debate Over Juvenile Justice
By Zusha Elinson
Two years ago federal prosecutors won a delinquency finding against a boy accused of engaging in sex acts when he was 10 years old with other young boys on an Army base in Arizona—one of the youngest defendants ever pursued by the U.S. Justice Department.
The case, now being reviewed by the Ninth Circuit U.S. Court of Appeals, could open a new front in a long-running debate about how to handle juvenile sex offenders, whose cases generally have been tried in state, not federal, courts. The records are sealed because the defendant was tried as a juvenile, but the case came to light in September at an appellate hearing in
open to the public. San Francisco
The boy's appeal involves a thorny legal question: Should children be prosecuted for sex acts with other children under a federal law that the boy's lawyers say was designed to target adult predators? The fight also highlights a broader debate over tagging juveniles as criminal sex offenders, a label that can land them a spot on registries that track offenders and limit where they can live.
The boy was found delinquent—guilty in juvenile-court parlance—on charges of aggravated sexual abuse against five boys between the ages of 5 and 7, under a statute that makes it illegal to engage in a sexual act with a person younger than 12 regardless of whether physical force is involved. The boy was sentenced to five years' probation, including mandatory psychological treatment, lawyers on the case said. He must also register as a sex offender in certain states, according to his lawyer.
"I think this is really overreaching on the part of the government," Keith Hilzendeger, a federal public defender representing the boy, said in an interview. He added that he had "never heard of a federal case where a person is 10."
Assistant U.S. Attorney Bruce Ferg said outside the courtroom that federal prosecutors took the case because of "the severity of the conduct" and because it took place on
, the Army base
where the boys lived with their families. Fort
"My opinion is this is the best thing that could've happened to the kid," said Mr. Ferg, adding that the case included allegations of anal penetration, repetitive behavior and threats. He said that prosecutors considered, "What can we do with this child to make sure this doesn't happen again?"
Mr. Hilzendeger declined to comment on the facts of the case. In the appeal, Mr. Hilzendeger argued that the case should be tossed out because of the vagueness of the federal aggravated sexual-abuse statute, which outlaws sex acts with children under 12 but is silent on how old the offender must be. Mr. Hilzendeger, who said there were "no allegations of force" and "no allegations of forcible rape in the charges that were brought," said the law doesn't give prosecutors clear guidance about who is the victim and who is the offender in cases where both parties are younger than 12.
Mr. Ferg countered by saying, "It is not vague to say, 'If you do this kind of activity, we don't care what age you are, you are liable for prosecution.' "
Sex crimes committed by youth aren't unusual. Of sex offenses against minors reported to police, 35.6% were allegedly committed by other minors, according to a 2009 study published by the federal Office of Juvenile Justice and Delinquency Prevention. One out of eight of those juvenile offenders was under 12, according to the report.
David Finkelhor, lead author of the report, said that when children under 12 engage in exploitative sexual behavior it is often because they have been abused or exposed to sex acts through pornography or other means.
"The kids need mental-health and family interventions," said Mr. Finkelhor, director of the Crimes Against Children Research Center at the
. "There isn't much
that the juvenile justice system has to offer them." University of New Hampshire
A Justice Department spokesman said the department doesn't track the ages of juvenile defendants, but lawyers involved in the case and experts in juvenile justice said the boy was one of the youngest people they have ever known the federal government to prosecute.
Juvenile-justice experts were surprised to learn that the federal government would prosecute a 10-year-old.
"The prosecution seems more of a folly than a meaningful exercise in promoting public safety or addressing real criminal conduct," said Marsha Levick, deputy director and chief counsel at the
a public-interest legal nonprofit group in . Philadelphia
It is rare for federal courts to hear cases involving underage defendants, particularly for sex crimes. There are a total of 96 juveniles being held in federal contract juvenile facilities, according to a spokeswoman for the Federal Bureau of Prisons. But young children charged in state courts for sex crimes have spurred public debate and some court decisions.
The Utah Supreme Court overturned delinquency findings in 2007 against a girl who had been charged with sexual abuse of a child after engaging in consensual sex when she was 13 with a 12-year-old boy—who was charged with the same crime, which outlaws sex acts with a child under 14 years old. The boy was sentenced to probation. But after the girl appealed her case, the court concluded that the double-barreled charges produced "an absurd result not intended by the legislature because, like all sexual assault crimes, the statute presupposes a perpetrator and a victim."
In general, as courts and legislators roll back harsh punishments for juveniles in other areas of the law, there is a nascent debate over how to punish minors convicted of sex crimes. Among other issues, they are often required to register as sex offenders, limiting where they can live and what jobs they can take as adults.
In recent years, at least five states have moved to allow some young offenders to get off or be kept off registries, most recently
, and a few
others are considering similar changes. Delaware
Five Colorado residents found delinquent in sex crimes as teens—including a boy who was accused when he was 13 of trying constantly to hug a girl at his elementary school—sued the state in September to challenge a law requiring them to register as sex offenders as adults. A spokeswoman for the
attorney general's office said, "We haven't been served, and therefore we
haven't evaluated the allegations." Colorado
Mr. Hilzendeger said the fact that his client would have to register as a sex offender was part of the motivation for the appeal. "Obviously, requiring a child under the age of 12 to register as a sex offender is inconsistent with the goals of rehabilitation that underlie the juvenile justice system," he said.